Law Commons^™

Lawyers Keep Out: Why Attorneys Should Not Participate In Negotiating Critical Financial Numbers Reported By Public Company Clients, William O. Fisher

Law Faculty Publications

In response to the financial scandals at the turn of the century, Sarbanes-Oxley and related reforms radically changed the relationship between accountants and the companies they audit. As a result, auditors exert greater power in the negotiations with management that produce critical numbers in company financial statements. That power provides auditors with newfound ability to resist pressure to certify financial statements that are overly favorable to company stock prices. With the best of intentions, some now urge that company attorneys should expand their efforts to police clients’ financial statements. But the introduction of lawyers into the bargaining between management and …

Three Models Of Legal Ethics, Anthony D'Amato, Edward J. Eberle

Faculty Working Papers

This article presents a picture of each of the three theoretical models—autonomy, socialist, and deontological—and indicates how they differ from one another in their application to some aspects of attorney-client confidentiality, one of the most hotly debated topics of professional ethics.

Obligation To Obey The Law: A Study Of The Death Of Socrates, Anthony D'Amato

Faculty Working Papers

Do we have an obligation to obey any law, no matter how unjust or evil, provided only that it is in fact a valid rule of the legal system in which we happen to be physically located? Reassessment of the relation between law and ethics justifies a new look at the classic statement of legal obligation: the death of Socrates found in the dialogues of Plato. Three possible bases for an ethical obligation to obey the law are examined.

Foreword: The New Era- Quo Vadis?, John Sahl

Akron Law Faculty Publications

The Inaugural MBI Symposium’s twenty-six participants highlight many important developments and challenges caused by MJP and new technologies. Their assessments and suggestions provide a helpful roadmap for lawyers and regulators to negotiate the increasingly complex, fast-paced, and ethically risky landscape for delivering legal services. Several panelists suggested regulatory reforms that range from the creation of a regulatory framework for lawyers engaged in crossborder practice to the creation of standards for the supervision of offshore outsourced legal services268 and the mining of metadata. Some of the panelists’ suggestions and reforms are especially important given the “high [financial] stakes” involved in the …

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

The Lesson Of The Irish Family Pub: The Elder Clinic Path To A More Thoughtful Practice, Katherine C. Pearson

Journal Articles

In this article, the Director of the Elder Law Clinic at Pennsylvania State University provides insight into the development of Elder Law as a unique discipline by tracking the history and challenges faced by her program as it approaches ten years of operation. A core focus of the Elder Law clinic, beyond practical experience, is to expose its students to the ethical issues confronted in Elder Law practice. Students in the clinic combine classroom discussions with practical experience representing clients, thereby becoming better prepared for their professional futures, while also gaining appreciation for the special concerns of the elderly client. …

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Journal Articles

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …

Exporting American Legal Ethics, James E. Moliterno

Scholarly Articles

None available.

Beyond Cardboard Clients In Legal Ethics, Kate Kruse

Faculty Scholarship

This Article argues that the construction of cardboard clients in legal ethics has disserved legal ethics by obscuring what is arguably a more central problem of legal professionalism: the problem of legal objectification. The problem of legal objectification is the tendency of lawyers to "issue-spot" their clients as they would the facts on a blue-book exam, overemphasizing the clients' legal interests and minimizing or ignoring the other cares, commitments, relationships, reputations and values that constitute the objectives clients bring to legal representation. This Article proposes an alternative ideal of legal professionalism for "three-dimensional clients" based on helping clients articulate and …

Atticus Finch: Christian Or Civic Hero - A Response To Professor Mcmillian, Judy Cornett

College of Law Faculty Scholarship

No abstract provided.

Colorado Legal Ethics: Guide To Resources, Robert M. Linz

Publications

No abstract provided.

Legal Ethics In International Criminal Defense, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less …

Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin

Scholarly Works

This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Alice Woolley, W. Bradley Wendel, William H. Simon, Stephen Pepper, Daniel Markovitz, Katherine R. Kruse, Tim Dare

Faculty Scholarship

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws?

Those papers, which are to be published in Legal Ethics, are compiled here, along with the question and background information with which the panelists were provided.

How Must A Lawyer Be? A Response To Woolley And Wendel, David Luban

Georgetown Law Faculty Publications and Other Works

In Legal Ethics and Moral Character, 23 GEO. J. LEGAL Ethics, Alice Woolley and W. Bradley Wendel argue that theories of legal ethics may be evaluated by examining the kind of person a lawyer must be to conform to the normative demands of the theory. In their words, theories of legal ethics musts answer questions not only of what a lawyer must do, but how a lawyer must be. Woolley and Wendel examine three theories of legal ethics—those of Charles Fried, William Simon, and myself—and conclude that the theories they discuss impose demands on agency that are not realistic, functional, …

Lawyers In Character And Lawyers In Role, Kate Kruse

Faculty Scholarship

Legal ethicists have long been fascinated by the relationships between lawyers’ roles in an adversary system of justice and the character, attitudes, or dispositions that best suit the practice of law. Leonard Riskin’s scholarship has explored how lawyers’ practice of mindfulness can improve their legal practice, and his claim in this body of work – that the practice of mindfulness helps to develop the internalized trait of mindfulness – ties his scholarship to the work of legal ethicists who have endeavored to develop character-based theories of legal ethics. Riskin’s analysis of how lawyers might incorporate mindfulness into law practice also …

Through A Glass Darkly: Using Brain Science And Visual Rhetoric To Gain A Professional Perspective On Visual Advocacy, Lucille Jewel

Scholarly Works

American legal culture, tracking the trend within the media culture as a whole, has become inherently more visual. Visual competency is now required for effective persuasion in the courtroom and in a variety of other advocacy settings. The central thesis of this Article is that visual advocacy is here to stay, but that there is a large knowledge gap that prevents advocates from being able to evaluate the professionalism of their own visual arguments and properly respond to the visual arguments submitted by their opposing counsel.

Accordingly, this Article offers a detailed outline of the knowledge bases that attorneys need …

The Torture Lawyers, Jens David Ohlin

Cornell Law Faculty Publications

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

A Tale Of Two Judges : A Judge Advocate’S Reflections On Judge Gonzales’S Apologia, Charles J. Dunlap Jr.

Faculty Scholarship

This is a response to - and reflection about - Judge Alberto Gonzales's essay in the Texas Tech Law Review entitled "Waging War Within the Constitution" 42 Tex. Tech. L. Rev. 843 (2010). It argues that national security law policy in an era of complex challenges is best designed when the expertise of the widest number of knowledgeable practictioners is brought to bear in a principled and fearless manner.

David Luban, Review Of Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, David Luban

Georgetown Law Faculty Publications and Other Works

Daniel Markovits offers a novel defense of the traditional partisan advocate’s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called “negative capability”—a suppression of the self in order to allow someone else’s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) …

Negotiation Ethics For Real World Interactions, Charles B. Craver

GW Law Faculty Publications & Other Works

Attorneys negotiate constantly. Many persons who teach negotiation courses feel uncomfortable with the deception often associated with bargaining. Negotiators demand more or offer less than they are willing to accept, and over- and under-state the value of different items for strategic purposes. Such "puffing" and "embellishment" are part of most business and legal interactions, and are are accepted by most professionals. On the other hand, misrepresentations of material information is clearly improper. Collaborative and Cooperative lawyers who feel uncomfortable using deceptive tactics to further client interests have agreed to be entirely open and cooperative when they negotiate. At what point …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …